1809281 (Refugee)
[2022] AATA 2761
•23 June 2022
1809281 (Refugee) [2022] AATA 2761 (23 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Michelle Gunaratne (MARN: 0958672)
CASE NUMBER: 1809281
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Susan Hoffman
DATE:23 June 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 23 June 2022 at 9:12am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religion – Muslim – fear of Bodh Bala Sena (BBS) – family land dispute – “One Country, One Law” policy – eye-witness to a fatal shooting – credibility assessment – delegate’s interview – interpretation issues – Tamil dialects – Sri Lankan communication style – delay in seeking protection – prevalence of document fraud – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 30 November 2015. He was interviewed by the delegate on 13 March 2018. The delegate refused to grant the visa on the basis that she did not find the applicant’s claims of being at risk of harm due a claimed assault and land acquisition in 2008, and his involvement in religious clashes in June 2014, to be credible.
3. The applicant appeared before the Tribunal on 21 April 2022 via MS Teams video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
4. The applicant was represented in relation to the review. The applicant provided written submissions were made before and after the hearing of 21 April 2022.
5. A second hearing was held on 9 June 2022 which the applicant attended in person. His representative and the interpreter attended via MS Teams video. After the hearing the applicant submitted a short video.
CRITERIA FOR A PROTECTION VISA
6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.[
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
12. The issue in this case is whether the applicant’s claims of being at risk of harm in the foreseeable future because of events he claims occurred in 2014 are credible. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
General background and delegate’s decision.
13. The applicant claimed that he was born in Sri Lanka on [date]. He provided the Department with certified copies of an expired and a current passport as evidence of his identity, nationality and citizenship. The originals were sighted at a departmental interview.
14. The delegate recorded that there was no evidence before her indicating that the documents used to establish identity were bogus documents, and that a check of the relevant systems revealed no information that raised concerns that the applicant had given a false identity.
15. For the purpose of assessing the applicant’s protection claim, the delegate accepted the applicant’s identity was as he claimed. The Tribunal therefore accepts that the applicant is who he claims to be, that he is a citizen of Sri Lanka and Sri Lanka is his country of nationality and receiving country.
16. According to departmental records, the applicant arrived and departed Australia as follows:
· He was in Australia between [date] March 2013 and [date] March 2013 on a [business] visa.
· He was granted a Visitor (class FA subclass 600) visa on 18 March 2015 and arrived in Australia [in] March 2015.
· He lodged his application for protection on 19 June 2015.
17. The applicant claimed, and the delegate accepted, that the applicant is Muslim and had a [business] in Sri Lanka. The applicant’s wife and children remain in Sri Lanka.
18. The applicant’s claims were set out in his statement of claims dated 16 June 2015. A brief summary of his claims, based on that document and what the delegate recorded in her decision statement from her interview held on 13 March 2018, follow:
· In 2008, he was attacked when some of his family’s land in [Town 1] was grabbed by members of Bodh Bala Sena (BBS). He filed a police complaint and was threatened because of it. As a result of these threats, he and his family moved to where his wife came from, [Town 2], for safety.
· At about 9 pm on 15 June 2014, he was on a motorbike with a friend when they were attacked by members of BBS who damaged and burnt the motorbike. The applicant lost [valuables] which were in the bike.
· At 1.30 am, BBS rounded up the population of [Village 1] and [Town 3]. The applicant saw them shoot a friend who died from his wounds. As the applicant was an eye-witness, he was summoned by the police to identify those responsible. He was then threatened with harm. He went into hiding at this time “for all those days”.
· He lodged a police report about the motorbike so he could claim insurance, which he did within days of it being destroyed.
· Presidential elections were to be held on 8 January 2015 and it was hoped the outcome would be favourable for minorities such as Muslims in Sri Lanka.
· On 14 February 2015 he was asked to visit the police as an eye-witness to the shooting. Members of the racist group who engaged in the riot were present in the police station. Some of them threatened to kill him and other witnesses if they helped the police identify the people responsible for the riots. The police were unable to control these people and asked the potential witnesses to leave.
· Two days later he was asked by the [Town 2] police to visit the [City 1] police station where he enquired about his safety and the threats and did not get any response. When he got to [City 1] police station with two friends to testify to what he had seen, he saw the same thugs who were at the [Town 2] police station standing in front of the [City 1] police station. He realised it would not be safe for him to go inside so he told the police and went home.
· The next day some of thugs came to his neighbourhood to look for him. At first they went to the wrong place but then they found where he was staying. Fortunately, he was away from home on business. His wife called him and pleaded with him not to go home. He went to Colombo to stay with his sister.
· He contacted a Buddhist person who was a [Occupation 1] and asked him to mediate with the racist group. He asked (via the mediator) to not be killed and he would promise he would never appear in the court or testify against them. Their response was they did not believe him, they feared he would identify them and kept saying they would kill him.
· According to the mediator, he would be found wherever he was in Sri Lanka because BBS members circulated his photo on social media with the message he should be handed over to them if he was found.
· He thought when the new government was voted in, he would be safe as the government would control BBS, but he was wrong and the government did not control them.
· He left Sri Lanka to save his life. He did not believe the police would be able to provide security for him and his family. He managed to hide in Colombo with his sisters but feared they would come to harm for sheltering him. Plus how long could he stay in hiding? He could not stay with his brother as he has problem in [Town 1] as well.
· The police could not protect him because they are loyal to the Buddhist priest and their campaign. His testimony as witness to the case was vital. Charging and punishing the perpetrators would take a very long time to go through the justice system.
19. The delegate did not consider the applicant to be credible. Her reasons included that he claimed to have witnessed the clashes in June 2014 but did not leave Sri Lanka until March 2015 and that he did not claim protection until June 2015.
20. The delegate identified discrepancies in the applicant’s evidence to do with where he was living in Sri Lanka; where he was travelling from and to when he and his friend were attacked in June 2014; what happened to [the valuables] that he claimed he had with him when he was attacked; about what happened to his motor bike; and the name of his friend whom he claimed had died in the June 2014 attack.
21. The delegate also stated that the applicant’s answers to questions about his first interactions with police after the events of June 2014 were vague and lacked the spontaneous detail that may have persuaded the delegate that he was telling the truth. She also stated that the applicant had provided fraudulent documents to support his claims.
22. The interview lasted 1 hour 55 minutes. From listening to a recording of the interview, it is apparent there was some misinterpretation and misunderstandings. For example, the Tribunal heard places names, including names of Perth suburbs, mentioned by the applicant that were not included in the interpreter’s translations.
23. A number of times the delegate asked questions calling for a yes/no response but the applicant did not answer that way. For example, after the applicant described what happened to him in 2008, the delegate asked him “Did you try and leave Sri Lanka?” He responded, “I went to another town.” She then said, “I will try again, did you try and leave Sri Lanka?” The Tribunal notes that Sri Lankans’ communication style is described thus:
Their communication style can come across as ambiguous and indirect.
Sri Lankans have a courteous, indirect speech style. This means they prefer to insinuate things rather than be explicit in their meaning. To questions and requests that require a yes or no answer, a Sri Lankan's preoccupation with saving face and being polite can lead them to answer ‘yes’ – whether they mean this or not. For a Sri Lankan, a flat ‘no’ may indicate that you wish to end the relationship and can lead to the loss of face for the other person. One way of navigating around this is to check for clarification several times using open-ended questions.[1]
[1] SBS (2022) Sri Lankan Culture – Communication - Verbal, accessed 21 June 2022 at
24. The Tribunal also notes that the delegate asked the applicant to tell her what happened in June 2014. It is apparent from referencing his written statement of 16 June 2015, that although he started by talking about the events of June 2014, he went on to talk about what he claimed had happened in February 2015, but he did not clarify this to the delegate.
25. The Tribunal also notes that the delegate asked the applicant if anything had happened to his family since he had been in Australia. He said that he believed they had been threatened but if they went to report it to the police, the police would not record it. When asked what the threats said, he responded that they enquired about when he was coming back and that if he did come back, they would kill him. That particular claim was not mentioned in the delegate’s decision.
Findings and reasons
26. In determining whether or not the applicant meets the criteria for protection, the Tribunal has considered the evidence before it, including the sworn evidence of the applicant and if that is credible. The Tribunal recognises the difficulty facing protection visa applicants in giving evidence at formal hearings, and when using an interpreter as in this case. Generally, if the overall claims made are credible, the Tribunal will extend the benefit of the doubt when the applicants are unable to substantiate all their claims. However, applicants may embellish details or aspects of their claims to strengthen their case. The Tribunal considers it appropriate to critically evaluate claims made by applicants.
27. In a written submission, the applicant referred to difficulties he experienced at the delegate’s interview understanding questions put to him and that he became confused because he found it difficult understanding the interpreter. Having listened to the delegate’s interview, the Tribunal formed the view that there were some issues with interpretation. There were also issues arising from the different communication styles of the delegate and the applicant.
28. The interpreter who assisted the Tribunal at its first hearing also assisted at its second hearing. As is standard practice, the Tribunal checked with the applicant that he could understand the interpreter. During the course of the first hearing, which was about two hours long, there were a couple of times when something had to be repeated and/or clarified which is not uncommon in a hearing of that length. At the second hearing, the Tribunal asked the applicant and the interpreter if they could understand each other, and both said they could. The Tribunal was satisfied that the standard of interpretation was generally satisfactory.
29. The Tribunal formed the view that the applicant was truthful in giving his evidence. It was consistent with what he told the delegate, with his written statements and broadly with country information. The Tribunal formed the view that most of his evidence could be relied upon, and that the applicant has a genuine fear of being returned to Sri Lanka.
30. The Tribunal will first set down relevant country information and return to the applicant’s evidence later.
Country information
31. DFAT’s most recent country information report for Sri Lanka is dated 23 December 2021. It stated that Muslims make up about 9% of the population of Sri Lanka and is considered to be both an ethnicity and a religion. About 70% of the population are Buddhist, and 12% are Hindu. Various Christian denominations account for about 8% of the population. Most Muslims speak Tamil. Sections from the report follow, including information about BBS at 3.18 and 3.20:
2.48 The security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009. The Sri Lankan Government exercises effective control over the entire country, including Tamil-populated areas. Security was heightened across Sri Lanka following the 2019 Easter Sunday terrorist attacks (see also 2019 Easter Sunday Terrorist attacks and Aftermath of Anti-Muslim Violence).
2.49 The 2019 Easter Sunday suicide bombing terrorist attacks, carried out on 21 April 2019 by local Islamic extremists (National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI)) and inspired by Daesh (ISIL/Islamic State), targeted three luxury hotels in Colombo (Western Province) and three Christian churches in Colombo, Negombo (Western Province) and Batticaloa (Eastern Province). More than 250 people were killed in the bombings with another 490 injured. A Commission of Inquiry has investigated the bombings but, as at the time of publication, the Commission’s report had not been publicly released. The Catholic Church in Sri Lanka has repeatedly raised concerns about the ongoing lack of justice for victims and the Government’s handling of the investigations. The Commission’s work and broader efforts to seek accountability have become highly politicised, including due to allegations of links between intelligence personnel and the groups that carried out the attacks, and of negligence by high-ranking officials including former President Sirisena
2.50 The Sri Lankan Government claims it has killed or apprehended all those directly involved in the 2019 Easter Sunday terrorist attacks. Nearly 2,300 individuals were arrested in connection with the attacks, up to 300 of whom reportedly remain in police custody at the time of publication. The Sri Lankan Government proscribed the NTJ, the JMI and a third local Islamic extremist group, Willaayath as Seylani (WAS), as terrorist entities. According to media reporting, in May 2021, the Sri Lankan Ministry of Defence said it had no information about any current terrorist threat in Sri Lanka. See also Muslims with regard to the treatment received by Muslims in Sri Lanka following the 2019 Easter Sunday terrorist attacks.
3.16 Sri Lanka recognises religious holidays for Buddhists, Hindus, Muslims and Christians. Prominent Buddhist, Hindu, Muslim and Christian leaders attend national functions, although most events include only Buddhist rituals. Religion is a compulsory subject in both public and private schools. Students are able to study their choice of Buddhist, Hindu, Muslim or Christian religious classes, depending on the availability of teachers. There are some Hindu and some Muslim public schools.
3.17 The Government adheres to a 2008 ministerial circular, introduced by the Ministry of Buddha Sasana, Religious, and Cultural Affairs (though later revoked, according to the US Department of State). According to local sources, the circular is used as the basis to restrict the construction of new places of worship by religious minorities. Local sources allege that police and government officials at the local level, who are predominantly Buddhist, are prejudiced against religious minorities and are not responsive to instances of religiously-motivated attacks against them.
3.18 According to local sources, the Rajapaksa Government maintains the support of its largely Buddhist Sinhalese base by engaging in religious polarisation, including by supporting extremist Buddhist groups. A number of these operate in Sri Lanka, including the Bodu Bala Sena (BBS), Sinha Le (Lion’s Blood), Sinhala Ravaya (Sinhalese Roar) and the Mahason Balakaya. These groups emerged in response to perceived threats to Sri Lanka’s Buddhist identity posed by religious minorities, mostly during the time of President Mahinda Rajapaksa’s Government (2005-2015). The BBS is the most prominent; founded in 2012, it has engaged in acts of violence and hate speech against religious minorities, particularly Muslims. Hate speech against religious minorities, particularly Muslims, is prevalent on social media. The US Department of State reported that in April and May 2020, there was a ‘vast outpouring’ of anti-Muslim hate speech on social media and in other media related to the COVID-19 pandemic and the purported role of Muslims in spreading it, which the Government did not ‘adequately refute’. On 12 September 2021, a spokesperson for the BBS said the Government needed ‘to prevent the emergence of terrorists through Islamic extremism and the Government must take meticulous and expeditious actions in the same way that LTTE terrorism was wiped out from the country.’…
3.20 In 2019, then-President Sirisena pardoned the jailed prominent Buddhist extremist, Galagoda Aththe Gnanasara Thero. Sources noted that, while Gnanasara had been jailed, it was for contempt of court, and he had never been prosecuted for inciting violence against religious minorities. In late 2021, minority communities expressed concern that Gnanasara had been appointed as Chair of a new Presidential Task Force (PTF) to make recommendations in respect of the ‘One Country, One Law’ concept, with a view to coming up with proposals to implement one law for all Sri Lankans (currently personal status laws apply to some groups, such as Muslims).
3.21 DFAT assesses that, while laws or official policies generally do not discriminate on the basis of religion, adherents of religions other than Buddhism face a low to moderate risk of official discrimination from government authorities, which can affect their ability to build places of worship, seek recourse for religiously-motivated attacks, and practise their faith freely.
32. The section of the DFAT report about Muslims is as follows:
3.22 Muslims are the third largest religious group in Sri Lanka (9.7 per cent of the population identified as practising Islam at the time of the 2012 census, the most recent census available). Between 1981 and 2012, Sri Lanka’s Muslim population grew by over 40 per cent, from 1.12 million to 1.97 million. Most Muslims speak Tamil as their first language. Muslim communities live throughout Sri Lanka, including in Colombo and Kandy, with larger communities in the east (Ampara, Batticaloa and Trincomalee), north (Mannar) and northwest (Puttalam). Nearly all Sri Lankan Muslims (98 per cent) are Sunni. A small number of Shi’a, including members of the Bohra community from India, reside mostly in Colombo. The Malay community, largely comprising descendants of Malay members of the Ceylon Police Force, is Muslim and a few of its members hold senior positions in the Sri Lankan military and police. The Urdu-speaking Memon community of Indian or Pakistani descent mostly lives in Colombo. Sri Lanka also hosts a small number of Muslims who follow the Sufi tradition.
3.23 Muslim property rights fall under state law while sharia (Islamic) law and cultural practice apply to marriages (see Muslim women). Although many Muslims work in agriculture and fisheries, many also work in business, industry and the civil service. There are many wealthy Muslim businesspeople throughout Sri Lanka.
3.24 Muslim parties have historically been active in Sri Lankan politics. However, following the 2020 parliamentary elections, such parties hold few seats. The Sri Lanka Muslim Congress (SLMC), traditionally the largest Muslim political party, has a single seat in parliament, as do each of the All Ceylon Makkal Congress (ACMC) and the new Muslim National Alliance. There is one Muslim party in the governing coalition, the SLPFA. There is a single Muslim minister in Cabinet: Minister for Justice Ali Sabry, who was previously President Gotabaya Rajapaksa’s long-term legal counsel.
3.25 Although most Muslims sided with (Sinhalese) government forces during the war, religious tensions between Muslims and the Sinhala Buddhist majority have risen in the post-war period and most especially since the 2019 Easter Sunday terrorist attacks but also earlier in 2014 and 2018. Extremist Buddhist groups, such as the BBS, have targeted the Muslim community, including through social media. While freedom of expression has declined overall, greater impunity for hate speech, together with the growth of social media use, has enabled an increase in hate speech against Muslims and other religious minorities. Buddhist extremists have advocated for a boycott of Muslim-owned shops and businesses. Sources from within the Muslim community told DFAT Muslims did not receive adequate state protection from the BBS and other extremist Buddhist groups, but DFAT is not aware of any recent acts of violence that resulted in a lack of state protection.
3.26 In March 2020, the Sri Lankan Government announced compulsory cremations for those who had died from COVID-19, claiming the measure would limit the spread of the disease. Without any medical basis and against the advice of the World Health Organisation, the Government contended that burial in accordance with Islamic tradition posed a public health risk. The policy, which was ended in February 2021 when the Sri Lankan Government came under sustained international pressure, was highly traumatic for Sri Lankan Muslims. Sources said the policy reinforced Sinhalese beliefs that Muslims had spread COVID-19 and were outsiders to Sri Lanka. Local sources said some Muslims avoided COVID-19 testing and medical treatment for fear they might be cremated upon death.
3.27 Anti-Muslim sentiment in Sri Lanka increased following the 2019 Easter Sunday terrorist attacks (see Security situation). Under the Emergency Regulations promulgated following the attacks, clothing that covered the face and prevented identification was banned in public places, which was interpreted as a clear reference to Islamic dress for women. Some shops, hospitals, courts and universities banned women wearing the hijab from entering their premises, until the Government clarified that the ban did not extend to the hijab. In 2021, Minister for Public Security, Sarath Weerasekera, again called for a ban of face coverings on ‘national security’ grounds. This proposal appears to have stalled (as at the time of publication).
3.28 Local sources told DFAT that, after the attacks, Muslim shop owners, stallholders, mobile vendors and daily labourers in the Eastern Province were obstructed from carrying out their daily business. Leaflets were also distributed promoting boycotts of Muslim businesses, and some Muslims were denied access to shops and transport.
3.29 The Muslim community came under increased scrutiny as part of the then-government’s counter-terrorism efforts following the attacks, including monitoring for signs of radicalisation. According to media reporting, up to 2,000 Muslims were questioned and, in many cases, detained for ‘extremism’ on the basis of limited evidence. Muslims were reportedly also targeted for vehicle searches at security roadblocks throughout the country. The Government has indicated it will work to ‘de-radicalise’ Muslims suspected of extremist views, including, potentially, through a rehabilitation process modelled on Tamil rehabilitation. It is unclear what such a process, if it were introduced, would entail.
3.30 After the attacks, the Muslim community has been the subject of reprisals, including physical assault and property damage. According to an NGO report examining online hate speech between March and June 2020, 58 per cent of online hate speech in all national languages (Sinhala, Tamil, and English) attacked Muslims or Islam on a variety of grounds, while of the Sinhala-language posts surveyed, 79 per cent attacked Muslims or Islam. In late 2021, data collected in similar reports indicates this percentage has declined substantially, though Muslims remain the most-targeted religious or ethnic group by hate speech.
3.31 DFAT is not aware of any significant episodes of anti-Muslim violence in 2021. DFAT assesses that Muslims face a low risk of violence. DFAT also assesses that Muslims face a low – but increasing – risk of official discrimination and a moderate risk of societal discrimination, including a growing threat to their freedom of religion. DFAT further assesses that Muslims critical of the Government face a moderate risk of harassment and arbitrary detention.
33. The DFAT report also addresses the prevalence of document fraud in Sri Lanka, as follows:
PREVALENCE OF FRAUD
5.42 The Central Registrar issues identity documents, including to populations that were in the north and east during the war. Most official records in Sri Lanka are kept in a centralised location in hard-copy format; government departments lack computerised information databases.
5.43 Genuine identity documents can be obtained by submitting fraudulent supporting documents, including birth certificates and NICs. Counterfeit documents are the primary cause of fraud in the issue of NICs, passports and driver’s licences. People seeking illegal passports include those on the ‘stop’ and ‘watch’ lists, those wishing to falsify age to obtain employment, or those wishing to return to a country from which they have previously been deported.
5.44 Attempts to use fraudulent documents are common and DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual’s financial situation. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports several years ago of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.
5.45 DFAT assesses that document fraud is common in Sri Lanka, and there is capacity for fraud in the process for reissuing lost documents. [Emphasis added.]
34. The anti-Muslim riots that took place in June 2014 are well-documented. For example, from Amnesty International:[2]
At least four people have been reported killed and scores injured in the southern coastal towns of Aluthgama and Beruwala since an anti-Muslim riot broke out following a rally organized by the hard-line Buddhist group Bodu Bala Sena (BBS) on Sunday. Violent incidents have also been reported in other towns since Sunday…
“Eyewitness reports that police have stood by and refused to intervene in the violence are very troubling and must also be investigated. Security forces have a duty to protect the right of everyone to life and security regardless of their beliefs or identity.”
Despite police imposing a curfew, anti-Muslim mob violence continued over Monday and Tuesday, resulting in widespread destruction of property, with Muslims’ homes and shops burned and looted. Tensions had been rising in Aluthgama for days following an alleged fight between Muslim youths and a Buddhist monk’s driver.
But despite Muslim community leaders warning that the situation could escalate, the government granted BBS permission to stage the rally on Sunday that sparked the violence, apparently without putting in place the means to prevent or stop it.
[2] Amnesty International (2014) Sri Lanka: Act now to prevent further bloodshed in anti-Muslim violence, accessed 21 April 2022 at
35. The International Crisis Group published an article on 23 December 2021, summarised as follows: [3]
Sri Lanka’s president has named a veteran anti-Muslim agitator to head a legal reform task force. Critics have called the move “incomprehensible”, but it is readily understood as a way to divert discontent among the government’s Sinhala Buddhist base toward an embattled minority.
[3]
36. The Tribunal notes that DFAT’s most recent report on Sri Lanka is also dated 23 December 2021. It makes mention of Gnanasara, the ‘veteran anti-Muslim agitator’ just referred to. The Crisis Group article continued:
On 28 October, President Gotabaya Rajapaksa appointed the militant Buddhist monk Galagoda Aththe Gnanasara to head a presidential task force on legal reforms, shocking many in Sri Lanka and beyond. Gnanasara is the public face of the country’s leading anti-Muslim campaign group, Bodu Bala Sena (Army of Buddhist Power, or BBS). He is widely accused of inciting inter-communal violence, including two deadly anti-Muslim pogroms in June 2014 and March 2018. Convicted of contempt of court for a separate incident, Gnanasara was sentenced to six years in prison but received a presidential pardon from Rajapaksa’s predecessor, Maithripala Sirisena, in his final months in office. The act of clemency came after intensive lobbying by nationalist monks and an upsurge of anti-Muslim sentiment in the aftermath of the 2019 Easter bombings, a series of attacks on churches and tourist hotels carried out by a small group claiming allegiance to the Islamic State, or ISIS.
37. The article goes through the history of BBS and anti-Muslim sentiment in Sri Lanka which has waxed and waned over the years. The terrorist bombing in Easter 2019, which killed about 270 people, was carried out by local Islamic extremists (see 2.48 of the DFAT report above). It exacerbated tensions and hostility towards Muslims. The article states as follows:
For many Sinhalese, especially Christians, as well as some Tamils, the Easter attacks seemed to confirm earlier warnings of a growing threat from “Islamic extremism”. Authorities responded to these fears in the attacks’ aftermath with what appeared to be the criminalisation of Muslims’ everyday practices. Police arrested more than two thousand Muslims under emergency and terrorism laws, in all but a few cases with no evidence of links to the bombings or any threatening behaviour; they picked up many merely for having a Quran or other religious materials in Arabic script at home.
After the Easter bombings, the previously failed electoral strategy of shoring up Sinhala support through vilification of Muslims gained new traction. Gotabaya announced his candidacy just days after the attacks, promising to eradicate new forms of religiously motivated terrorism just as he had previously destroyed the Tamil Tigers when he was defence secretary. At the polls, Gotabaya received overwhelming support from Sinhala voters, including many Catholics who had not previously backed him. The new president himself seemed to acknowledge the strategy’s success, declaring in his inaugural speech given in front of a Buddhist shrine: “I knew that I could win with only the votes of the Sinhala majority”….
The government may as yet have no precise agenda for the task force, but given Gnanasara’s charisma and theatrical skills, he is a potentially powerful, and dangerous, asset for reframing political debate, deepening divisions between Tamils and Muslims and possibly even provoking a new round of anti-Muslim unrest. He has been central in propagating Buddhist nationalist ideology over the last decade.
38. The Crisis Group article also analyses the significance of the ‘One Country, One Law’ slogan under the heading The Rise of Anti-Muslim Politics, as follows:
In November 2019, Gotabaya Rajapaksa’s successful campaign for Sri Lanka’s presidency made much of the slogan “one country, one law”, which had gained popularity after the 2019 Easter bombings. Its ambiguity was useful: at one level, it could be interpreted as merely asking for uniform treatment of all citizens and resonated with voters angry at the impunity with which politicians and their powerful supporters are able to violate the law. But its discriminatory implication was also obvious from the start, hinting at a need to “protect” the Buddhist nature of state and society by eliminating the separate rules and treatment that many Sinhalese believe Muslims use to gain economic and political advantages.
39. Since the DFAT report and the Crisis Group’s article, President Rajapaksa’s government has reportedly “been in turmoil” following protests that have “erupted over the government’s handling of a devastating economic crisis.”[4] Thousands have protested calling for him to resign. Instead, in April 2022, he dissolved his cabinet and appointed a new one, and plans are in train for talks with the International Monetary Fund.
[4] Australian Financial Review (2022) Sri Lanka’s president expands cabinet ahead of IMF talks, accessed 19 April 2022 at
40. While most of the protests have been about the economic situation in Sri Lanka, there are also protests at the failure of Rajapaksa government to find “those responsible for the deaths of more than 260 people in bombings three years ago”.[5] This was a reference to the 2019 Easter terrorist attack perpetrated by Islamist extremists. The call to find those responsible, along with the appointment of Gnanasara to head a task force on legal reforms, and the current economic crisis, could result in increased hostility towards Muslims. There is the possibility that the government may use anti-Muslim sentiment to redirect the anger that many people have about the government.
[5]
41. More recent reports have pointed to Buddhist monks disengaging from politics, in part at least because they are embarrassed by the behaviour of Gnanasara, as in this article from April 2022.[6]
Historians are optimistic that Sri Lanka’s vibrant democratic political system would not tolerate political extremist fringe groups such as the BBS. Former JHU member, Ven. Dr. Omalpe Sobitha Thera in 2004, claimed that the time was right for Buddhist monks to enter Parliament and institute positive societal change. However, he now states that Buddhist monks have failed in their service to the nation and must refrain from politics. He has called for the imposition of restrictions on Buddhist monks intervening in all matters of politics.
He goes on to state that Buddhist monks should limit themselves to advising and guiding the political leadership, as a duty to the nation and its people. In the past, unlike today, there was no necessity to impose any such prohibition on monks engaged in politics, as they acted responsibly.
The death knell for the involvement of Buddhist monks in politics has come in the form of the thuggish monk, Gnanasaara. His irreligious conduct has been an acute source of embarrassment to moderate lay Buddhists and the Sangha fraternity.
There is a sharp decline in the involvement of monks in parliamentary politics with only one monk, Athuraliye Rathana Thera, as a National List Member of Parliament.
[6] Serasinghe, S. (2022) Political Buddhism in Sri Lanka: Prelates join the swell, accessed 17 May 2022 at
42. Other articles published in April and May 2022 allude to Sri Lankans of different religions and ethnicities uniting as they participate in the anti-Rajapaksa movement. The situation in Sri Lanka continued to unfold.
43. As noted in paragraph 3.20 of the DFAT report and elsewhere, in late 2021 the Buddhist monk Gnanasara, following his release from prison, had been appointed by President Rajapaksa as chair of a new Presidential Task Force (PTF) to make recommendations in respect of the “One Country, One Law” proposal.
44. An article published 2 June 2022 recorded that on 27 May 2022, the tenure of the task force was extended for three weeks to “complete the task assigned” to it.[7] The “One Country, One Law” concept, if enacted, would mean that Muslims would be required to follow Sri Lankan law and not Islamic law in relation to what was described as personal matters, such as marriage, mourning rituals and dress code. The article also referred to the Attorney General having instructed police to file charges against Gnanasara for using language “deemed hurtful to religious sentiments”. President Rajapaksa’s continuing support of Gnanasars suggests that he is not opposed to stirring up anti-Muslim feeling to deflect from his own unpopularity.
[7] EconomyNext.com (2022) Sri Lanka president extends tenure of controversial One Country One Law task force, accessed 14 June 2022 at
45. A report dated 9 June 2022 stated that Saudi Arabia had approved a quota of 1,585 Sri Lankans to attend the Haj pilgrimage this year. The Sri Lanka government forbade it to save the nation foreign exchange. This decision was reversed and Muslims in Sri Lanka can perform Haj on condition they pay USD1,500 in foreign currency whilst they are overseas.[8]
[8] The New Indian Express (2022) Sri Lankan Muslims permitted to fly for Hajj; must transfer USD 1,500 from overseas, accessed 21 June 2022 at
Pre-hearing submission and the delegate’s reasons
46. The applicant submitted a statement dated 18 March 2022. It set out the events of 15 June 2014 in some detail, referring to times and dates consistent with the applicant’s statement dated 18 June 2015 which was given to the Department with his application for a protection visa. The applicant confirmed at the hearing that he had a copy of the statement made 18 June 2015. It makes sense that this was used when drawing up his statement dated 18 March 2022.
47. As with that earlier statement, the March 2022 statement did not cover the period from July 2014 to January 2015, apart from a reference to a police report dated [in] July 2014 that was, according to the applicant, needed for him to lodge an insurance claim for the damaged motorcycle. That police report was not mentioned in his original statement but he gave evidence about it at the delegate’s interview.
48. The 18 March 2022 statement included a response to the reasons given by the delegate for finding that the applicant was a not person in respect of whom Australia has protection obligations.
49. At the delegate’s interview, the applicant was asked if there were other parts of Sri Lanka where he could live safely. He said that he moved from [Town 1] to [Town 2] because [Town 1] was not safe for him after family land was stolen by a member of BBS and he, the applicant, made a formal complaint which he withdrew in April 2011 because of ongoing threats made to him by phone. He said that [Town 1] was still not safe for him because of that.
50. In her decision, the delegate wrote that the applicant’s failure to seek protection in Australia or another country raised “serious concerns about the immediacy, gravity and credibility of his claims to be at risk of serious or significant harm throughout Sri Lanka due to the claimed events of 2008”.
51. The applicant never claimed he was at risk of serious or significant harm throughout Sri Lanka because of what transpired in 2008. To the contrary, the applicant had stated that he moved to another part of Sri Lanka to get away from the threat that occurred in 2008. The Tribunal considers this to be reasonable. It has no bearing on the legitimacy or otherwise of the protection claim he made on 19 June 2015 which was largely based on events that occurred in 2014 and 2015, not events that took place in 2008. (The Tribunal notes the relevance of the 2008 event in relation to whether he could relocate to other parts of Sri Lanka in 2014 or 2015.)
52. The delegate’s reasons for her decision included that the applicant claimed to have witnessed the clashes in June 2014 but did not leave Sri Lanka until March 2015.
53. The applicant claimed that there were events that occurred in June 2014, including him being witness to a shooting which led to the death of his friend. In his statement dated 18 June 2015 which was provided to the Department as part of his protection claim, the applicant claimed that in February 2015 police called him into the police station to give evidence as a witness to the shooting, and that racist thugs threatened him at the police station. Some of the thugs turned up at his house looking for him. According to the applicant, he decided he had to leave Sri Lanka for his own safety because people were looking for him. What occurred in February 2015 was the immediate trigger event for him leaving Sri Lanka, rather than the June 2014 events. The Tribunal considers this explanation to be reasonable and plausible.[9]
54. The delegate also expressed concern about the delay between the applicant arriving in Australia in March 2015 and lodging his protection claim about three months later. The applicant’s explanation was that it took him some time to find out what he should do to lodge his claim. His current representative assisted him with completing the relevant form which was dated 16 June 2015. His statement that accompanied it was dated 18 June 2015. The form and statement were submitted to the Department on 19 June 2015. Based on the four-page detailed statement, it would have taken some time to prepare that. The Tribunal does not draw any adverse inference because the applicant did not lodge his protection immediately after arrival in Australia. It may have taken him some time to find out what he should do to seek protection and locate a representative. At the time he lodged his application, he was lawfully in Australia on a Visitor (class FA subclass 600) visa. There was no need from that perspective for him to lodge his claim as a matter of urgency.
55. In his submission to the Tribunal, the applicant wrote that the Tamil dialects spoken in various parts of Sri Lanka can be quite different. He said that at the delegate’s interview, he was struggling to understand the Jaffna or Indian Tamil dialect spoken by the interpreter and the interpreter did not understand some of the words he used.
56. In his statement the applicant wrote that he was returning from [University 1] when he and his friend, who were on a motorbike, were attacked. The delegate recorded that at the interview, the applicant said he was travelling from home to a mosque. In his submission to the Tribunal, the applicant wrote that the university has a mosque which was open to the public, and the incident happened when he was returning home from the mosque at the university. An internet search shows that [University 1] in [Town 2] is an Islamic university.[10] It follows that it has a mosque on the campus.
[10] [Source redacted]
57. The Tribunal is satisfied that the applicant has adequately explained why he may have referred to the university on one occasion and to the mosque on another, on the basis that the mosque is located within the university. A discrepancy as to whether he was travelling to or from the mosque can easily be explained by a misunderstanding or mistake with interpretation or misremembering by the applicant. In any event, given the documented events of that night (the attacks by mobs), the Tribunal considers it to be a minor discrepancy.
58. The delegate noted that in his written statement, the applicant wrote that the [valuables] he had with him were lost when the bike was burnt by the BBS but that at interview, he said the [valuables] were taken by the BBS. The applicant stated in his submission to the Tribunal that when he ran away to save himself, he lost possession of the [valuables]. He went back later to search for them but could not see them. He assumed that the rioters took them as the [valuables] could not be burnt. The Tribunal does not consider there to be an inconsistency here. It accepts that the applicant had possession of the [valuables] until the attack, and then he did not. Either the [valuables] were burnt or stolen, but either way he no longer had them. He could not be expected to know exactly what happened to them, as he ran away and left them with the bike.
59. The delegate recorded different addresses for the applicant which the Tribunal summarises in the following table.
| number | address | source | period |
| 1 | [Address 1], [Town 2] | Form 80, visa application | Jul 2008 to Feb 2015 |
| 2 | [Address 2], [Colombo Suburb 1] | Form 80, visa application | Feb 2015 to Mar 2015 |
| 3 | [Address 3], [Colombo Suburb 1] | Current passport Motor vehicle registration dated 1 March 2013 | |
| 4 | [Address 4], [Colombo Suburb 1] | From interview, his last address in Sri Lanka | |
| 5 | [Address 5], [Town 2] | From interview, also his last address in Sri Lanka |
60. The delegate pointed to some discrepancies regarding the applicant’s addresses at different times. As Sri Lanka uses a different script, the fact that a street name might be translated into English as [name] or [name variant] is of no consequence. The Tribunal places no weight at all on the difference in spelling of [name variant] versus [name]
61. [Colombo Suburb 1] is in Colombo and [Town 2] is about [number] kilometres [direction] of Colombo. The attacks that took place in June 2014 occurred in the coastal towns of [Town 2] and [Town 4], not the capital, Colombo. The delegate made the point that if the applicant was in [Colombo Suburb 1] at the time of the riots (June 2014) then he would not have been caught up in them.
62. The applicant’s response in his submission to the Tribunal was that he had registered his passport and driving license to his sister’s address. In Sri Lanka, they do not have to be registered to the address where a person lives. He confirmed his business was based in [Town 2] and his home was in [Town 2] also.
63. The applicant submitted copies of his [business] licenses. Each lasted for a year. He provided six copies for years from 2009 to 2014. According to these, his business was based in [Town 2]. He also provided a copy of a 2009 document on his business letterhead – [Business 1] - listing [the business stock] he would be carrying valued in total at over USD41,000. He also provided bank statements for his business and his wife which each gave a home address in [Town 2].
64. The applicant provided other documents stating he lived in [Town 2] and/or his business address was in [Town 2]:
· A letter from his friend [Mr A], dated 27 June 2014, to the [Town 2] Police Commissioner.
· A record by [Town 2] police of a statement made to the police by the applicant on 20 June 2014 about the motor bike.
· Bank statements from [Bank 1], [Bank 2], [Bank 3].
· Various invoices, mainly from a phone company
· Motor vehicle registration.
· Receipt for school fees from [College 1] in [Town 2] for 2012, 2013 and 2014.
· Marriage certificate from 2006, recording that the applicant lived in [Colombo Suburb 1] and his wife lived in [Town 2].
· Business registration certificate dated 12 February 2013 for [Business 1]. It recorded that the business, which exported [goods], was started on 20 January 2003. The principal place of business was recorded as [Town 2].
65. It is apparent from listening to the delegate’s interview that there was some confusion – relatively minor – as to what was meant by the applicant’s last address in Sri Lanka. His home address, where he lived with his wife and family, was [Address 1], [Town 2]. Because he feared for his safety, he left there and stayed at [Address 2] [Colombo Suburb 1] for a couple of weeks before leaving the country. Depending on how the question is phrased and/or the nuances of language, either address could be a correct answer to the question of where he last lived in Sri Lanka.
66. The delegate also referred to a death certificate, with translation, provided by the applicant for [Mr B]. The delegate noted that this was consistent with the applicant’s claims about the death of his friend [Mr B] but was contradicted by media reports which stated that three men were shout outside the mosque, two of whom died and none of them were named [Mr B]. The delegate concluded, taking into account the prevalence of document fraud in Sri Lanka (as noted in the DFAT report), that the death certificate was not genuine.
67. The applicant’s response to this in his written submission was that no media outlets had named the victims properly, either inadvertently or by design. It was pointed out that the names of Muslims are constantly misspelt by the majority Sinhala in Sri Lanka due to the complexity of people’s names. It was also submitted that the genuineness of a document should not be called into question merely because there is a tendency in Sri Lanka for people to forge documents.
68. The applicant submitted to the Tribunal a letter dated 28 October 2021 which he wrote was issued by the area mosque to [Mr B]’s wife regarding the collection of financial aid for her.
69. The letter is on letterhead of [named mosque], in [Village 1], [Town 3] in Sri Lanka and is signed by [President C] and [Secretary D]. It reads as follows:
To whom it may concern,
Confirmation Letter
On the request of [Mr B]’s wife, [Ms E], ID card holder [number], living in the address, [Village 1], [Town 3], we draft this letter confirming that the family requires financial assistance to meet with their daily needs, after the husband’s death. We confirm that her husband, [Mr B], father of three children, as one of the two people who passed away in [Village 1] in the ethnic riots held on 16.06.2014.
70. The Tribunal considers that the prevalence of document fraud, as noted by DFAT in their report, to be of concern. The applicant has submitted a wide range of documents, mainly for the purpose of supporting his claim that he resided in [Town 2] rather than [Colombo Suburb 1].
71. The prevalence of document fraud in Sri Lanka can be highly problematic for applicants. If they are requested, or choose, to provide documents to support their claims, and these are then rejected because of the prevalence of document fraud without further considerayion, applicants are placed in an impossible situation.
72. With regard to this applicant, given the range of documents he has provided to the Department and to the Tribunal, the Tribunal accepts that they are genuine and that he resided in [Town 2] as claimed, at the relevant time.
Evidence given at hearing and consideration of that and other evidence
73. The Tribunal asked the applicant why he did not want to return to Sri Lanka. He said it was because of BBS, Gnanasara and the ‘One Country, One Law’ slogan and because his details were on social media. He also said that if he went back to his home country, his life would be in danger.
74. The applicant said that he was attacked by the BBS group and then summoned by the police to tell them about the murder. They wanted him to identify the BBS people. The Tribunal asked if the police contacted him about that in June or July 2014 or much later and he said that the police called him in February 2015.
75. The applicant said that after during the attacks in June 2014 he went to a village called [Village 1] through the bushland park to safeguard his life. He said he went there at 11 pm and stayed there until 2.30 am.
76. The applicant said he said he met [Mr B] there. With [Mr B] and other people he went to a friend’s place and there were about 30 or 40 people there. He asked for their help to go and see his friend, [Mr F], who had been attacked with him earlier. This was a reference to the applicant and [Mr F] being attacked while they were on the motorbike.
77. [Mr B] told him it was not safe to go to the place of the earlier motorbike attack. So they stayed in front of [Village 1] mosque. He said the whole area was rounded up by the BBS group. They were in front of the [Village 1] mosque. The police were there. The BBS started to shoot. They were shooting and [Mr B] and others were injured. To protect themselves, they ran into the mosque. The shooting occurred at 1.30 am.
78. The applicant’s responses were consistent with his written statement and what he told the delegate. The Tribunal notes that there were two attacks referenced by the applicant, the first being against him and [Mr F] when they were on the motorbike and the second being the shooting when the applicant and his friends were outside the mosque.
79. The applicant said he went to the police in June 2014 to report the motorbike incident. He made the complaint on 20 June 2014 and on 20 July 2014 he got a copy of the complaint to make an insurance claim for his bike. The Tribunal notes from the documents submitted by the applicant that the motorbike was owned by his friend, [Mr A], who had loaned the motorbike to the applicant to use. The applicant told the delegate that he was buying the bike from his friend and still owed him money for it at the time of the attack. [Mr A] wanted the applicant to lodge a police report about it so he could claim insurance. The applicant went to the police station to report that the bike had been destroyed within days of that happening.
80. The applicant said that at the time of the attacks, he was living at his home in [Town 2] with his wife and children. He said the police called upon him three or four times, wanting him to show them the place where [Mr B] was shot and where his bike was burnt. He believed the perpetrators of the crimes thought the applicant was trying to identify the people who did those things. He was scared in the months following the June 2014 attacks and was in hiding.
81. The Tribunal asked the applicant during what period was he hiding, and he responded June 2014 but the problem became big in February 2015 after he identified things. The Tribunal referred the applicant to his written statement where he stated he was in hiding from June 2014 to February 2015 and asked if that was a correct understanding; that he was claiming to have been in hiding between those dates.
82. The applicant said that after going to the police and making a complaint, people started to come to his house. He went to police to identify people and from then, people started to come to his house. The applicant asked if that happened during June or July 2014. The applicant said that in 2014 he showed the police the spot where his bike was burnt and where [Mr B] was shot. When asked where he was hiding, the applicant said he was living in his house. After people came to his house in February 2015, he went into hiding in Colombo.
83. The applicant said he was hiding between July 2014 and February 2015 in the sense that he was still living in his house, but he was reluctant to go out, he was scared to go out. He said that he continued to run his business during that period - from July 2014 to February 2015 - with his two business partners. He said that he did not go to the mosque, he prayed at home.
84. The Tribunal observes that based on country information descriptions of what happened during the attacks by mobs on Muslims in [Town 2] and elsewhere in June 2014, these would have been terrifying and potentially traumatising events. In the applicant’s case, he personally was subjected to attacks twice and saw friends injured and killed. The Tribunal finds it credible that he was fearful and reluctant to leave his home.
85. The Tribunal asked the applicant if BBS members came to his house to try and find him during that six-month period. He said that they came in February 2015 but not before then; but he was not at home that day, on 14 February 2015. The applicant confirmed that it was the first time he had left home for business purposes for some months.
86. In his submission to the Tribunal, the applicant had written that his photograph had been published in social media. The Tribunal asked the applicant how he knew his photo was on social media. He said that his wife told him not to come home as his life was in danger. So he tried to contact BBS people through a [Occupation 1], to let them know he would not say anything about them. The Tribunal asked how he knew his photo was on social media.
87. He referred to the [Occupation 1] he had asked to mediate on his behalf when he was in Colombo before leaving Sri Lanka for Australia; that would have been in February or March 2015. The applicant said the [Occupation 1] told him his photo was on social media.
88. The Tribunal asked the applicant if he had seen his details on social media himself. He said he had not seen it himself. The Tribunal asked if anyone else had told him that they had seen him on social media. He said that the only person to tell him that was that [Occupation 1].
89. The Tribunal asked the applicant if he had tried to find himself on social media and he said no and that it was circulated on a [instant communication] group, which he knew because the [Occupation 1] told him.
90. The Tribunal asked the applicant if anything else had happened between 2015 and now that indicated BBS or anyone else had an interest in him. The applicant said that they are trying to find him. They came and asked for him, and searched for him. His wife told him they came several times after 2015, after he came to Australia. When asked when that occurred, the applicant said that he did not know the exact date.
91. When asked the approximate date, the applicant said it happened in January this year; January 2022. He said his wife told him that they are still searching for him and that he should not come back to Sri Lanka.
92. The claim was not mentioned in the March 2022 statement and had not been mentioned earlier in the hearing. However, the applicant had told the delegate at an interview on 13 March 2018, about three years after he arrived in Australia, that his wife told him people were looking for him. This was not mentioned in the delegate’s decision.
93. The applicant said that the March 2022 statement was largely a response to concerns raised, and findings made, by the delegate in her decision.
94. The Tribunal received a post hearing submission on 5 May 2022. This was an affidavit from [Mr G] dated 25 March 2022. This affidavit identified [Mr G] as a neighbour of the applicant in [Town 2]. He wrote that the area they live in is a predominantly Muslim area, and people of other faiths do not generally come into the area. Following the riots, they keep an eye on outsiders because of several incidents that have happened that almost caused disharmony.
95. According to his affidavit, on 4 February 2022, [Mr G] was at home and heard people talking in the Sinhala language and asking people in the street questions. He became suspicious and went to his rooftop to see what was happening. He saw two men open the gate of the applicant’s family’s home. He started to be more suspicious and began recording the incident. He saw the two men, who were wearing motorcycle helmets, trying to enter the home where the applicant’s family lives. He wrote that he knew they were up to no good. He wrote that before they entered through the gate, there was a man walking on the road, and he asked them where they were going. They said something in Sinhala about someone “who came back from abroad”. The man said he did not know anyone who had come back from abroad.
96. [Mr G] wrote that the men were clearly of the Sinhala race. They went through the gate to approach the house and then came back and left on their motorbike.
97. [Mr G] wrote that he mentioned this incident to the applicant’s wife when she came home and she said it was a bi-weekly or so occurrence that someone barges into their premises asking for her husband to find out if he had returned home.
98. [Mr G] wrote that he has spoken to neighbours and they told him about several motorbikes passing by once in a while to check on the house and there is a reasonable suspicion this is done to intimidate the family and hunt down the applicant should he return.
99. [Mr G] wrote that he showed the applicant’s wife the video he took of the two men because he thought it might help her if she wanted to take legal action should she feel the family’s safety was threatened. She asked him to write his affidavit to confirm he had made the video of that particular incident in case she wanted to pursue it later on.
100. At the second hearing, the Tribunal asked the applicant why he did not submit the affidavit before the first hearing, which was held in April 2022, given its apparent relevance to his protection claim.
101. The applicant said that the affidavit was not prepared for his case, it was written for his wife in case she needed to use it. The Tribunal asked a series of questions as to why the applicant had not given more prominence to his claims that people had been coming to his family home over the years to look for him.
102. The applicant said that he had no evidence of that until now, with the affidavit and the video referred to in the affidavit. He did not have firsthand knowledge of people looking for him like he did with his conversation with the [Occupation 1] and he had no evidence of people looking for him beyond what his wife said.
103. The applicant became very distressed at one point in the hearing and was crying. He said that he had a life-threatening issue which was why he left Sri Lanka and he left his wife and children for all these years. He said that when he was in Sri Lanka, he would go away on business for maybe a month but had never left them for so long before. The only way he can see his kids now is through a video call. He said that BBS was stronger now than when he left, and they want the “One Country, One Law” policy enacted.
104. The applicant also said that he comes from a wealthy family. His father was wealthy and he is wealthy. He does not need to come to another country for economic reasons. He said that his business partners have continued to run his business while he has been in Australia. The delegate recorded that the applicant had travelled extensively overseas since 2008. This is consistent with him having a business that exports [goods], and is consistent with documents he provided to the Department and to the Tribunal.
105. The Tribunal viewed the video referred to in the affidavit; the video was submitted after the second hearing. It is 1 minute 26 seconds long. It was filmed from above. It shows two motor-cycle helmeted men going from the street through a gate to a property. They are not carrying anything as might be the case if they were there to deliver a parcel. A man walks by. They appear to ask him something. After a very brief conversation he walks off, then turns around and gesticulates consistent with saying “I don’t know”. The men, still with their helmets on, go through the gateway towards the property and disappear from view. They come back into sight about 18 seconds later and walk towards, then through, the gate, leaving the property. One of them pulls the gate so it is almost shut. Then they get on a motorbike and ride away.
106. The video is not very informative, but it confirms in broad terms what was asserted in the affidavit. Notably the men did not remove their crash helmets. This gives a sense of menace but is by no means conclusive.
107. The Tribunal has formed the view that the applicant has a legitimate concern for his safety as there is evidence suggesting that people are still looking for him, most probably because there is the possibility he can identify the men who killed [Mr B].
108. The Tribunal is satisfied as to the veracity of the applicant’s evidence. It finds therefore:
The applicant lived in [Town 2] before and during 2014, as evidenced by the numerous and varied documents he provided and his consistency on this point.
The applicant owns his [business] which he operates with partners. Through family and his business, he is wealthy.
The applicant was caught up in the well-documented attack on Muslims by Sinhalese Buddhists in [Town 2] during June 2014. He was on a motorbike with a friend and was attacked. He sought safety with other members of his community at a friend’s place then a mosque where they were attacked.
The applicant witnessed the shooting of his friend, [Mr B], who died from his wounds soon after.
The applicant was summoned by police to show them where he and his friend were attacked on a motorbike and where [Mr B] was shot.
The applicant and other Muslims were hopeful that the outcome of the January 2015 presidential election would benefit minority groups such as Muslims. President Mahinda Rajapaksa was replaced by Maithripala Sirisena. Demands for a police commission to investigate the June 2014 attacks was formed.
In February 2015 the applicant was asked to attend police stations because he was an eye-witness to the killing of [Mr B] and other crimes. He was asked to identify members of the BBS who perpetrated the crimes. He was threatened by people when he arrived at the police stations.
Also in February 2015, when he was away from his home on business, men came to his house looking for him.
He tried to negotiate his safety via a [Occupation 1] who could mediate with the BBS but this was not successful.
He left Sri Lanka as he feared for his safety.
Since he left Sri Lanka, including this year, men have come to his house looking for him.
109. The applicant stated that he was of interest to the BBS because he witnessed crimes. He has also claimed more generally that Muslims in Sri Lanka are at risk as a minority and because of the “One Country, One Law” policy. He contended that Gnanasara and the BBS have become more powerful. The Tribunal does not consider this to be an accurate reflection of the current situation. Country information indicates their influence waned after 2015 until the Easter bombings in 2019 which caused an increase in anti-Muslim sentiment. That has lessened somewhat since then and Gnanasara is less influential than he was. However, President Rajapaksa has supported him as recently as May 2022 so any threat posed by Gnanasara and the BBS cannot, in the Tribunal’s view, be discounted entirely.
110. The situation in Sri Lanka is highly volatile. The representative submitted that the current chaos allows for revenge to be exacted and people can get away with it. There are ongoing clashes between the clashes and the government.
111. The Tribunal has considered whether the applicant engages the refugee provisions as a member of a minority group in Sri Lanka and as a witness to a crime, and has determined that his claim can be considered under the refugee provisions, for the following reasons.
112. The attacks on the applicant’s community in [Town 2] in 2014 were because they are Muslims. His friend, [Mr B], was killed because he was Muslim. While it can be argued that the targeting of the applicant is primarily because he witnessed what happened, he only witnessed it because he, as a Muslim, was caught up in the attack on his community. There is a clear relationship between the applicant’s religion and the police request for him to be a witness. Any desire on the part of the BBS to harm the applicant is likely exacerbated by him being Muslim as well as a witness, not just because he was a witness.
113. The Tribunal places little weight on a [instant communication] group from seven years ago creating a risk factor now for the applicant. However, it is possible that the applicant’s photo is available to people who might want to harm him through other platforms.
114. The Tribunal finds that there is a real chance the applicant could be seriously harmed, perhaps killed, because he witnessed attacks in 2014 and was willing at the time to identify the perpetrators. There is evidence the tribunal considers to be credible that people are still looking for him. This risk may be marginally heightened because of a previous altercation between the applicant and a member of the BBS in 2008, over a land grab in [Town 1].
115. In addition, it is of concern that in late May 2022, President Rajapaksa effectively endorsed the BBS leader Gnanasara by extending the “One Country, One Law” task force for three weeks to complete the task assigned to it. It is the Muslim community in particular that would be most affected if this was to be made law. In the interim, during a time of upheaval and suffering in Sri Lanka, there is a risk of an unpopular president attempting to deflect anger aimed at him towards minorities within Sri Lanka.
116. The Tribunal considered whether the feared persecution is localised. The Tribunal has identified two elements; that which targets Muslims in Sri Lanka and that which targets the applicant individually. The fact of the “One Country, One Law” policy being under consideration shows that the feared persecution is not localised. The applicant told the delegate that he practises his faith by regularly attending a local mosque in Perth. He was the treasurer of an Islamic school – a madrassa – in [Town 2] and was an active member of the Islamic community there. The applicant would be denied important aspects of his faith – attending a mosque with other Muslims and access to halal food– if he was to relocate to a part of Sri Lanka that did not have a Muslim community.
117. According to the DFAT report, Muslim communities live throughout Sri Lanka. Also according to the report, sources from the Muslim community told DFAT that Muslims did not receive adequate state protection from the BBS and other extremist Buddhist groups. DFAT was not aware of recent acts of violence that resulted in a lack of state protection. The report was written and published at a time that predates the current crisis in Sri Lanka.
118. Given the current instability in Sri Lanka, the Tribunal cannot be satisfied that there is currently effective state protection for Muslims from BBS and other extreme Buddhist groups in a broader sense and particularly in relation to the applicant who is someone they have been actively seeking out, should he return to Sri Lanka, now or in the foreseeable future.
CONCLUDING PARAGRAPHS
119. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
120. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s. 36(2)(a) of the Migration Act.
Susan Hoffman
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
Protection visas – criteria provided for by this Act
…
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Domestic Threats And Forced Migration, 1964–1989, International Interactions, Vol. 29, 27-55.
Key Legal Topics
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Immigration
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Administrative Law
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Legal Concepts
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Judicial Review
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Procedural Fairness
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